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Legislation in EU member states should not state that broadcast copyright is not infringed when it is immediately retransmitted by cable where it was initially broadcast, the Court of Justice of the European Union (CJEU) has ruled in the latest move in a dispute between UK free-to-air commercial broadcasters ITV, Channel 4 and Channel 5, and UK-based streaming service TVCatchup (TVC).
The broadcasters had claimed that TVC infringed their copyright by allowing the ‘live’ streaming of their broadcasts free of charge, suing TVC in the English High Court, contending that UK law prevents such a communication of works to the public.
The court referred a request for a preliminary ruling concerning the interpretation of the concept of ‘communication to the public’ in article 3(1) of Directive 2001/29 to the CJEU, which affirmed that online streaming was a “communication to the public”.
Subsequently, the High Court ruled that TVC had infringed the broadcasters’ copyright, but that it could rely on a defence under section 73 of the Copyright, Designs and Patents Act 1988 which covers ‘Reception and re-transmission of wireless broadcast by cable’. In response, the broadcasters appealed to the English Court of Appeal, challenging the section 73 defence.
The Court of Appeal stayed the appeal pending a further reference to the CJEU.
The CJEU found that, as regards the objective of Directive 2001/29, the principal objective of that directive is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public In the present case, and that it was “common ground” that the retransmission at issue in the main proceedings does not fall within the scope of any of the exceptions and limitations set out exhaustively in Article 5 of Directive 2001/29.
In conclusion, the CJEU said the concept of ‘access to cable of broadcasting services’, must be interpreted as not covering, and not permitting, national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the Internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations.
The broadcasters said they were delighted that the European court had ruled that their channels should not be retransmitted online or on cable without authorisation, suggesting that the finding recognised the vital importance of IP protection in maximising investment in original UK TV content and preventing “free-riding”.
The broadcasters noted that the government has already confirmed that section 73 of the Copyright, Designs and Patents Act 1988 is no longer relevant and will be repealed as part of the Digital Economy Bill 2016-17. The government recently published its response to a technical consultation it held on the transitional arrangements that would apply following the repeal of that section of the Act.
“Following this judgment, we now look forward to its immediate removal, as the government has promised to Parliament,” they concluded.